Leiden Law Blog

A difficult decision: a High Court judgment in a political environment

Posted on by Cees de Groot in Private Law
A difficult decision: a High Court judgment in a political environment

Namibia became an independent nation in 1990. It gained independence after a war for independence against South Africa led by the South West Africa People’s Organisation. Since then, the Swapo Party of Namibia has formed the government of Namibia. On 25 August 2017, the High Court of Namibia rendered a judgment on the question of whether two members of the Central Committee of the Swapo Party Youth League, who had been expelled from the Swapo Party, could retain their function in the Central Committee of the Youth League following an earlier High Court judgment that ordered the Swapo Party to restore the membership of both party members. The judgment opens with some interesting considerations of a general nature:

‘Prior to the formation of Swapo, there were uncoordinated, anti-colonial activities which were expressed in the form of localized strikes against colonial rule and individuals petitioning to the United Nations […]. It was thus realized then that the establishment of a political organization was the most appropriate and effective way to achieve genuine independence. Swapo as a political party was thus formed with the aim of establishing a political organization that will lead the struggle for independence’, and ‘Therefore, Swapo was not formed to advance individual scheme or ambition, but on a national platform of noble cause to articulate the hopes and aspirations of all the people of Namibia. Swapo then, as a national liberation movement, attracted supporters and sympathizers from all sectors of the population, men and women, young and old, peasants, intellectuals and workers’ (footnote deleted).

The Swapo Party Youth League is a ‘wing’ of the Swapo Party of Namibia. Both the Youth League and the Swapo Party have, as important constituent parts next their Congresses, a Central Committee. The Swapo Party also has a Politburo as a constituent part. In August 2012, the Congress of the Youth League elected J. Amupanda and E. Ngurare as members of the Central Committee (E. Ngurare being elected in the function of the Secretary of the Youth League). In July 2015, the Politburo of the Swapo Party expelled J. Amupanda and E. Ngurare from the party and all of its wings. That same month, this decision was confirmed by the party’s Central Committee. J. Amupanda and E. Ngurare challenged this decision in the High Court of Namibia. They asked the High Court to order, by way of interim measures, that their membership of the Swapo Party should be restored, and to order the Youth League to reinstate them as members of its Central Committee. In April 2016, the High Court granted the first order, but declined the second order.

The judgment of the High Court of April 2016, therefore, did resolve definitively the issue of whether J. Amupanda and E. Ngurare should be reinstated as members of the Youth League’s Central Committee. Following the expulsion of J. Amupanda and E. Ngurare from the Swapo Party, the Central Committee of the Youth League had appointed another person as the Acting Secretary of the Youth League. In January 2017, the Acting Secretary sent out invitations to the members of the Central Committee for a meeting to be held in February 2017. The Acting Secretary did not include J. Amupanda and E. Ngurare in the invitations as he was of the opinion that they were no longer members of the Central Committee. This caused considerable discussions within the Central Committee that was unable to resolve the question, especially as concerns J. Amupanda who had shown up for the meeting. The Central Committee instructed its Acting Secretary to take up the matter with the Swapo Party of Namibia. In response, the Secretary General of the Swapo Party informed the Central Committee that J. Amupanda was ‘an ordinary member of SWAPO Party and the Swapo Party Youth League. He is not a member of the Central Committee of the SWAPO Party Youth League’.

In its judgment of 25 August 2017, the High Court of Namibia dismissed the application by J. Amupanda and E. Ngurare to be reinstated as members of the Central Committee of the Youth League. The High Court did so by referring to the Court’s judgment of April 2016. The High Court cited the following paragraph from that judgment: ‘I am inclined to grant the first order applied for […], but I think it will be inequitable […] and unsafe and unreasonable for the court to go further and grant the second order. I do not think on the facts and in the circumstances of this case, the jurisdiction of the court to interfere in the internal dispute of a political party, an unincorporated voluntary association, […] should be extended beyond granting an order to restore their membership of the [Swapo Party of Namibia]’.

The judgment of the High Court of Namibia, Main Division, Windhoek, can be found at: www.namiblii.org, judgments, High Court main division, 2017, August 2017, Nashinge and Others v Swapo Party Youth League and Others.

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